Thought Crime in Washington

When I arrived at Zuccotti Prison one
afternoon last week, the “park” was in its now-usual lockdown
mode. No more tents. No
library. No kitchen. No medical
area. Just about 30 leftover protesters and perhaps 100 of New York’s
finest as well as private-security types in neon-green vests in or around
a dead space enclosed by more movable
police fencing than you can
imagine. To the once–open plaza, there were now only two small entrances
in the fencing on the side streets, and to pass through either you had
to run a gauntlet of police and private-security types.

The park itself was bare of anything
whatsoever, and, that day, parts of it had been cordoned off, theoretically
for yet more cleaning, with the kind of yellow police tape that would
normally surround a crime scene, which was exactly how it seemed. In
fact, as I walked in, a young protester was being arrested, evidently
for the crime of lying down on a bench. (No sleeping, or even prospective
sleeping, allowed — except in jail!)

Thanks to Mayor Bloomberg’s police
assault on the park, OWS has largely decamped for spaces unknown and
for the future. Left behind was a grim tableau of our distinctly up-armored,
post-9/11 American world. To take an obvious example, the “police”
who so notoriously pepper-sprayed nonviolent, seated students at UC Davis were
just campus cops, who in my college years, the 1960s, still generally
wore civvies, carried no weapons, and were tasked with seeing whether
students had broken curfew or locked themselves out of their rooms.
Now, around the country, they are armed with chemical weapons, Tasers, tear gas, side
arms, you name it. Meanwhile,
some police departments, militarizing at a rapid rate, have tank-like vehicles, and the first police surveillance drones are taking to the air in field tests and are capable of being weaponized.

And keep in mind, when it comes to that
pepper-spraying incident, we’re talking about sleepy Davis, Calif.,
and a campus once renowned for its agronomy school. Al-Qaeda? I don’t
think so.

Still, terror is what now makes our American
world work, the trains run more or less on time, and the money flow
in. So why should we be surprised that, having ripped Zuccotti Park
apart, destroyed
books, gotten a rep for pepper-spraying and roughing up protesters (and reporters,
too), the NYPD should propitiously announce
the arrest of yet another “lone wolf” terrorist. And can anyone
be shocked that we’re talking about a disturbed, moneyless individual —
he couldn’t even pay his cellphone bill, much less rent a place
to live — under surveillance for two years, and palling around with
an NYPD “informant” who smoked
marijuana with him and may
have given him not only a place to build a bomb but encouragement in
doing so.

It was a police-developed terror case
that evidently so
reeked of coaching even the
FBI refused to get involved. And yet this was Mayor Bloomberg’s shining
moment of last week, as the NYPD declared his home a “frozen” zone, the equivalent of declaring martial law
around his house. And who was endangering him? An OWS “drum circle.”
In the United States, increasingly, those in power no longer observe
the law. Instead, they make it up to suit their needs. In the process,
the streets where you demonstrate, as (New York’s mayor keeps telling
us) is our “right,” are regularly transformed into yet more fenced-in,
heavily surveilled Zuccotti Prisons.

This may not be a traditional police
state (yet), but it is an increasingly militarized policed
state in which the blue coats, armed to the teeth, act with remarkable
impunity — and all in the name of our safety from a bunch of doofuses
or unhinged individuals that its “informants” often seem to fund, put through basic terror
courses, and encourage in every way until they are arrested as “terrorists.”
This is essentially a scam on the basis of which rights are regularly
abridged or tossed out the window.

In 21st-century America, “rights”
are increasingly meant for those who behave themselves and don’t exercise
them. And if you happen to be part of a government in which no criminal
act of state — torture, kidnapping, the assassination of U.S. citizens
abroad, the launching of wars of aggression — will ever bring a miscreant
to court, only two crimes evidently exist: blowing
a whistle or expressing your
opinion. State Department official Peter Van Buren, whose new book about
a disastrous year he spent in Iraq, We
Meant Well: How I Helped Lose the Battle for the Hearts and Minds of
the Iraqi People, is
a must-read, learned that the hard way. So did Morris Davis. So may we all. Tom

No Free Speech at Mr. Jefferson’s
Library

Here’s the First Amendment, in full: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for
a redress of grievances.”

Those beautiful words, almost haiku-like,
are the sparse poetry of the American democratic experiment. The Founders
purposely wrote the First Amendment to read broadly, and not like a
snippet of tax code, in order to emphasize that it should encompass
everything from shouted religious rantings to eloquent political criticism.
Go ahead, reread it aloud at this moment when the government seems to
be carving out an exception to it large enough to drive a tank through.

As the occupiers of Zuccotti Park, like
those pepper-sprayed at UC Davis or the Marine veteran shot in Oakland,
recently found out, the government’s ability to limit free speech,
to stopper the First Amendment, to undercut the right to peaceably assemble
and petition for redress of grievances, is perhaps the most critical
issue our republic can face. If you were to write the history of the
last decade in Washington, it might well be a story of how, issue by
issue, the government freed
itself from legal and constitutional
bounds when it came to torture, the assassination of U.S. citizens,
the holding of prisoners without trial or access to a court of law,
the illegal surveillance of American citizens, and so on. In the process,
it has entrenched itself in a comfortable shadowland of ever more impenetrable
secrecy, while going after any whistleblower who might shine a light
in.

Now, it also seems to be chipping away
at the most basic American right of all, the right of free speech, starting
with that of its own employees. As is often said, the easiest book to
stop is the one that is never written; the easiest voice to stanch
is the one that is never raised.

It’s true that, over the years, government
in its many forms has tried to claim that you lose your free speech
rights when you, for example, work for a public
school or join the military. In dealing with school administrators who sought
to silence a teacher for complaining publicly that not enough money
was being spent on academics versus athletics, or generals who wanted
to stop enlisted men and women from blogging, the courts have found
that any loss of rights must be limited and specific. As Jim Webb wrote
when still secretary of the Navy, “A citizen does not give up his
First Amendment right to free speech when he puts on a military uniform,
with small exceptions.”

Free speech is considered so basic that
the courts have been wary of imposing any limits at all. The famous warning by Justice Oliver Wendell Holmes about not falsely
shouting “Fire!” in a crowded theater shows just how extreme a situation
must be for the Supreme Court to limit speech. As Holmes put it in his
definition: “The question in every case is whether the words used …
are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to
prevent.” That’s a high bar indeed.

The Government v. Morris Davis

Does a newspaper article from November
2009, a few hundred well-reasoned words that appeared in the conservative Wall Street Journal,
concluding with these mild sentences, meet Justice Holmes’ high mark?

Double standards don’t play
well in Peoria. They won’t play well in Peshawar or Palembang either.
We need to work to change the negative perceptions that exist about
Guantanamo and our commitment to the law. Formally establishing a legal
double standard will only reinforce them.

Morris Davis got fired from his research
job at the Library of Congress for writing that article and a similar letter to the editor of The Washington Post. (The irony of
being fired for exercising free speech while employed at Thomas Jefferson’s
library evidently escaped his bosses.) With the help of the ACLU, Davis
demanded his job back. On Jan. 8, 2010, the ACLU filed
a lawsuit against the Library of Congress on his behalf. In March 2011
a federal court ruled that the suit could go forward.

The case is being heard this month. Someday, it will likely define the free speech
rights of federal employees and so determine the quality of people who
will make up our government. We citizens vote for the big names, but
it’s the millions of lower-ranked, unelected federal employees who
decide by their actions how the laws are carried out (or ignored) and
the Constitution upheld (or disregarded).

Morris Davis is not some dour civil servant.
Prior to joining the Library of Congress, he spent more than 25 years
as an Air Force colonel. He was, in fact, the chief military prosecutor
at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis
had stated he would not use evidence obtained through torture back in
2005. When a torture advocate was named his boss in 2007, Davis quit
rather than face the inevitable order to reverse his position.

In December 2008, Davis went to work
as a researcher at the Library of Congress in the Foreign Affairs, Defense,
and Trade Division. None of his work was related to Guantanamo. He was
not a spokesperson for, or a public face of, the library. He was respected
at work. Even the people who fired him do not contest that he did his
“day job” as a researcher well.

On Nov. 12, 2009, the day after his
op-ed and letter appeared, Davis was told
by his boss that the pieces
had caused the library concern over his “poor judgment and suitability
to serve … not consistent with ‘acceptable service'” — as the
letter of admonishment he received put the matter. It referred only
to his op-ed and Washington Post letter and said nothing about
his work performance as a researcher. One week later, Davis was fired.

But Shouldn’t He Have Known Better
Than to Write Something Political?

The courts have consistently supported
the rights of the Ku Klux Klan to use extreme and hateful words, of
the burners of books, and of those who desecrate the American flag.
All of that is considered “protected speech.” A commitment to real
free speech means accepting the toughest cases, the most offensive things
people can conceive of, as the price of a free society.

The Library of Congress does not restrict
its employees from writing or speaking, so Davis broke no rules. Nor,
theoretically at least, do other government agencies like the CIA and
the State Department restrict employees from writing or speaking, even
on matters of official concern, although they do demand prior review for such things as the possible misuse of classified
material.

Clearly, such agency review processes
have sometimes been used as a de facto method of prior restraint.
The CIA, for example, has been accused of using indefinite security
reviews to effectively prevent a book from being published. The Department
of Defense has also wielded exaggerated
claims of classified material
to block books.

Since at least 1968, there has, however,
been no broad prohibition against government employees writing about
political matters or matters of public concern. In 1968, the Supreme
Court decided a seminal public employee First Amendment case, Pickering v. Board of Education. It ruled that school officials had violated
the First Amendment rights of teacher Marvin Pickering when they fired
him for writing a letter to his local paper criticizing the allocation
of money between academics and athletics.

A Thought Crime

Morris Davis was fired by the Library
of Congress not because of his work performance, but because he wrote
that Wall Street Journal op-ed on his own time, using his own
computer, as a private citizen, never mentioning his (unrelated) federal
job. The government just did not like what he wrote. Perhaps his bosses
were embarrassed by his words or felt offended by them. Certainly,
in the present atmosphere in Washington, they felt they had an open
path to stopping their own employee from saying what he did, or at least
for punishing him for doing so.

It’s not, of course, that federal employees
don’t write and speak publicly. As long as they don’t step on toes,
they do, in startling numbers, on matters of official concern, on hobbies,
on subjects of all sorts, through what must be an untold number of blogs,
Facebook pages, Tweets, op-eds, and letters to the editor. The government
picked Davis out for selective, vindictive prosecution.

More significantly, Davis was fired prospectively — not for poor attendance or too much time idling at the water cooler,
but because his boss believed Davis’ writing showed that the quality
of his judgment might make him an unsuitable employee at some future
moment. The simple act of speaking out on a subject at odds with an
official government position was the real grounds for his firing. That,
and that alone, was enough for termination.

As any devoted fan of George Orwell,
Ray Bradbury, or Philip K. Dick would know, Davis committed a thought
crime.

As some readers may also know, I evidently
did the same thing. Because of my book, We
Meant Well: How I Helped Lose the Battle for the Hearts and Minds of
the Iraqi People, about
my experiences as a State Department official in Iraq, and the articles,
op-eds, and blog
posts I have written, I first
had my security
clearance suspended by the
Department of State and then was suspended from my job there. That job had nothing to do
with Iraq or any of the subjects I have written about. My performance
reviews were good, and no one at State criticized me for my day-job
work. Because we have been working under different human resources systems,
Davis, as a civil servant on new-hire probation, could be fired directly.
As a tenured Foreign Service officer, I can’t, and so State has placed
me on indefinite administrative leave status; that is, I’m without
a job, pending action to terminate me formally through a more laborious
process.

However, in removing me from my position,
the document the State Department delivered to me darkly echoed what
Davis’ boss at the Library of Congress said to him:

The manner in which you have expressed
yourself in some of your published material is inconsistent with the
standards of behavior expected of the Foreign Service. Some of your
actions also raise questions about your overall judgment. Both good
judgment and the ability to represent the Foreign Service in a way that
will make the Foreign Service attractive to candidates are key requirements.

There follows a pattern of punishing
federal employees for speaking out or whistle-blowing: look at Davis,
or me, or Franz
Gayl, or Thomas Drake. In this way, a precedent is being set for an
even deeper cloud of secrecy to surround the workings of government.
From Washington, in other words, no news, other than good or officially
approved news, is to emerge.

The government’s statements at Davis’
trial, now underway in Washington, D.C., do indeed indicate that he was
fired for the act of speaking out itself, as much as the content of
what he said. The Justice Department lawyer representing the government said
that Davis’ writings cast doubt on his discretion, judgment and ability
to serve as a high-level official. (She also added that Davis’ language
in the op-ed was “intemperate.”) One judge on the three-member bench
seemed to support the point, saying, “It’s one thing to speak at
a law school or association, but it’s quite a different thing to be
in The Washington Post.” The case will likely end up at the
Supreme Court.

Free Speech Is for Iranians, Not Government
Employees

If Morris Davis loses his case, then
a federal employee’s judgment and suitability may be termed insufficient
for employment if he or she writes publicly in a way that offends or
embarrasses the government. In other words, the very definition of good
judgment, when it comes to freedom of speech, will then rest with the
individual employer — that is, the U.S. government.

Simply put, even if you as a federal
employee follow your agency’s rules on publication, you can still
be fired for what you write if your bosses don’t like it. If your
speech offends them, then that’s bad judgment on your part and the
First Amendment goes down the drain. Free speech is increasingly coming
at a price in Washington: for federal employees, conscience could cost
them their jobs.

In this sense, Morris Davis represents
a chilling precedent. He raised his voice. If we’re not careful, the
next Morris Davis may not. Federal employees are, at best, a skittish
bunch, not known for their innovative, out-of-the-box thinking. Actions
like those in the Davis case will only further deter any thoughts of
speaking out and will likely deter some good people from seeking federal
employment.

More broadly, the Davis case threatens
to give the government free rein in selecting speech by its employees
it does not like and punishing it. It’s okay to blog about your fascination
with knitting or to support official positions. If you happen to be
Iranian or Chinese or Syrian, and not terribly fond of your government,
and express yourself on the subject, the U.S. government will support
your right to do it 110 percent of the way. However, as a federal employee,
blog about your negative opinions on U.S. policies and you’ve got
a problem. In fact, we have a problem as a country if freedom of speech
only holds as long as it does not offend the U.S. government.

Morris Davis’ problem is neither unique
nor isolated. Clothilde Le Coz, Washington director of Reporters Without Borders, told me earlier this month, “Secrecy is
taking over from free speech in the United States. While we naively
thought the Obama administration would be more transparent than the
previous one, it is actually the first to sue five people for being
sources and speaking publicly.” Scary, especially since this is
no longer an issue of one rogue administration.

Government is different from private
business. If you don’t like McDonald’s because of its policies,
go to Burger King, or a soup kitchen, or eat at home. You don’t get
the choice of federal governments, and so the critical need for its
employees to be able to speak informs the republic. We are the only
ones who can tell you what is happening inside your government. It really
is that important. Ask Morris Davis.

[Note on further readings:
You can check out the ACLU’s full-filing text on behalf of Davis by clicking here.]

[Disclaimer: The views expressed
here are solely those of the author in his private capacity and do not
in any way represent the views of the Department of State, the Department
of Defense, or any other entity of the U.S. government. It should be
quite obvious that the Department of State has not approved, endorsed,
or authorized this post.]

Government is different to a private business? Your article points to the fact that Government is now a very private business, becoming more so with each passing day. You can also forget about looking for employment with a bank Mr Van Buren.. http://www.democracynow.org/2010/1/7/why_is_the_w…

So take heart Sam and stop killing yourself, in our thousands in our millions, we are all,
duh, ninety nine percenters

Patrick

After the Vietnam War, a lot of blame was placed on the media for us losing it. This was because they caused us to lose our "national will" to wage the war, leading to dissent. This can be seen in an influential book, On Strategy, by COL Harry Summers, in which he purports to bring the analysis of Carl von Clausewitz to a post-war analysis. In fact, the book was a bastardization of Clausewitz and drew more upon Norman Podhoretz for his political analysis and a German General from World War I, who'd been responsible for the war crimes in Belgium, for his strategic analysis. But ever since then the military has worked to control the media, as can be seen in many article from the military's professional journals.

Patrick

One 1975 article in particular, of which I can't recall the title, makes the point. After lamenting the loss of our will due to dissent and the media, the author observed that the totalitarian countries did not have the free flow of information as a handicap. So instead of remaining in Vietnam until a total collapse of our economy and our strategic interests, the U.S. got out in time to rebuild itself and went on to twenty five more years of relative prosperity, thanks to the dissent that questioned our leFourteen year later the Soviets paid the full price for not allowing dissent; a total collapse of their system. This is the same for other totalitarian states, such as the Nazi's end in a Berlin bunker and the Japanese militarists driving Japan into a total military defeat. The free flow of information was our source of national security strength, which we have eagerly forfeited with 9/11. Consequently, few commentators question why we have done so much to fulfill al Qaeda's objective, to our detriment, but defer to the military. People like the ones mentioned in this article are the prime targets to silence as they have credibility for having been on the inside.aders judgment in that war.

MvGuy

Be careful of the truth… It can be used to undermine our Real interests… We must never allow anyone to expose our true motivations and intents! Any such revelations will only make our work more difficult and costly. Vietnam is a good example. We were able to initiate that conflict with a minimum of oversight by hostile media … However, after just a few years, the press began to stir up the aimless rabbles.. against our work and methods. Explosive details of our efforts soon began to constrict our resources and maneuverability. We began to lose more and more ground.. until we were routed and our project there was quashed.. Those of us guiding these efforts began to realize that public perception and identification is critical.. We all agreed that our next project must be perceived as an attack on America and Americans. So after our 911 project, we have been hyper-vigilant that our message is the one and only message. We also concluded that anyone who does not concur should be treated as mentally unstable and deficient…

red

One might possibly be reminded by this article of the business in Germany – uummmm – say about 1936 to '38… Ya think?

Strider55

Regarding Tom's 1st paragraph: People need to stop referring to police officers as "(the city's/county's state's) finest." That may have been true years ago, but these days LEOs are all too often bullies, goons and thugs who enjoyed terrorizing their classmates when they were kids, then deliberately sought out police jobs so they could terrorize everyone around them while hiding behind their badges and guns.

I said to someone recently that "The only good cop is he that isn't one". Plain and simple.

Patrick

"One might possibly be reminded by this article of the business in Germany – uummmm – say about 1936 to '38"
All one has to do is read Terror in the Balance by Eric Posner and Adrian Vermeule, who make no secret of their indebtedness to Carl Schmitt in their call for an American style dictatorship and suspension of the Constitution, particularly the Bill of Rights and free speech.